‘Preemption’ Is Major Obstacle Across the Country as Progressive Laws Like Fracking Bans Passed in Liberal Cities Are Immediately Crushed by Right-Wing State Legislatures
When Denton, Texas, passed a fracking ban in November 2014, it was national news. The story seemed out of a movie, a David-and-Goliath tale in which a scrappy band of citizens goes up against big industry and wins. Located in the heart of oil and gas territory, the town is hardly a liberal bastion; its state representative is a staunch conservative, and among its biggest annual events is the North Texas State Fair and Rodeo.
But residents were watching gas drills come closer and closer to their parks and schools. Adam Briggle, a professor at the University of North Texas in Denton, found himself attending more and more meetings as he tried to understand the environmental impact of fracking, a process used to extract oil and natural gas from the ground. Tara Linn Hunter, a music teacher, found herself with debilitating adult asthma, a condition she attributed at least partly to pollution generated by the efforts to get natural gas. After the city council approved new drills just hundreds of feet from a park and a hospital in 2009, citizens began to organize. By 2014, Hunter and Briggle were part of Frack Free Denton, a group that sought to put a fracking ban on the ballot; Hunter helped coordinate volunteers collecting 2,000 signatures. Oil and gas industry groups poured hundreds of thousands of dollars into opposing the ban, outspending the activists nearly 10 to 1. In the end, that money didn’t matter—nearly 59 percent of Denton’s citizens voted in favor of the measure.
But from the beginning of its campaign, Frack Free Denton was aware that electoral victory wouldn’t be enough. The activists knew that with a single measure, the Texas state legislature could invalidate their local ban. What’s more, in doing so, the legislature would be acting under a completely legal state prerogative that reminds cities how limited their lawmaking power really is.
Sure enough, despite widespread local support, it only took months to make Denton’s fracking ban history. The GOP-dominated Texas state legislature, under pressure from the oil and gas industry, passed a law forbidding any locality from banning fracking. Denton’s own state representative voted for the measure. “We were so excited it passed, but I think we knew then we were up against a challenge because of the wave of folks who were voted up alongside the ban,” says Hunter. “We got a hard lesson in the state of our democracy, the state of our government.”
“PREEMPTION” LAWS ARE not new, nor are they necessarily about undoing local legislation. But with some notable exceptions, past preemption laws have generally enforced what can be called “minimum preemption”: They force localities to do something where they might otherwise have done little or nothing. As it’s often said, they set a “floor” for regulation. For instance, the federal government has been setting minimum standards of environmental protection for years, preempting the states from allowing lower environmental standards. Similarly, states often set a floor for various local regulations, whether regarding pollution, trade licensing, gun ownership, or other matters.
Most current preemption laws, by contrast, are what one might call “maximum preemption.” These laws aren’t about setting minimums; instead, they prohibit local regulation. States have prevented localities from creating paid sick leave requirements for businesses, or raising the minimum wage. Many who oppose these measures blame their proliferation on the conservative American Legislative Exchange Council, known as ALEC, which has drafted “model” preemption bills for state lawmakers to use. “Pretty much anything you can think of that matters to the American family is under assault by local preemption,” says Mark Pertschuk, the director of Grassroots Change, which fights preemption laws around the country.
Earlier this year, a fight in North Carolina over Charlotte’s anti-discrimination ordinance cast such maximum preemption laws into the national spotlight. The Charlotte City Council had passed a measure extending civil-rights protections for its LGBT community. The policy also allowed transgender individuals to use the bathroom that corresponds with their gender identity rather than with their biological sex. Including gay and transgender people in anti-discrimination ordinances has become a standard business-friendly move; nationwide, 225 cities and counties have passed similar measures, in part to attract businesses. While Republican Governor Pat McCrory and state legislature leaders threatened to intervene in Charlotte, Charlotte Mayor Jennifer Roberts, an advocate of the measure, wasn’t overly concerned. “I thought they’d make a big noise about it but they’d recognize it was just Charlotte, it’s a progressive city, and they didn’t need to come in and change anything because it would jeopardize the economy,” she says.
But when the state Republicans responded, they sent shockwaves around the country by passing a maximum preemption measure that invalidated all local anti-discrimination ordinances, including those protecting women and racial minorities. Not only did they force transgender people to use public bathrooms based on their reproductive organs; for good measure, they also rolled a provision into the bill that forbade any North Carolina city from increasing the minimum wage.
The strategic use of maximum preemption laws dates back to the 1980s, when localities began passing smoking bans and smoke-free requirements. As court documents later revealed, R.J. Reynolds began promoting preemption because, in its own words, “state laws which preempt local anti-tobacco ordinances are the most effective means to counter local challenges.” Although further grim research findings eventually dealt the tobacco industry’s campaign mortal blows, other groups learned from its efforts. The National Rifle Association used similar tactics in the 1990s when concerns about crime prompted local gun regulations; 43 states now have some form of maximum preemption preventing localities from passing additional gun regulations on top of state law.
In the last five years, as Republicans have captured an unprecedented number of state legislatures and as cities have become hotbeds for progressive organizing, the number of maximum preemption laws has grown dramatically. In 2011, after Wisconsin passed a bill limiting the local ability to require paid sick days, ALEC and the National Restaurant Association took up the cause, and now 15 states have preempted local paid sick day requirements. According to Grassroots Change, in 2015 at least 29 states introduced a maximum preemption measure and, of them, 17 considered more than one. The progressive source PR Watch reports that Florida alone considered 20 such measures. The bills’ concerns range from forbidding local plastic-bag bans to preventing towns from increasing the minimum wage. Last year saw a rise in what progressives call “super-preemption” bills, which both limit local authority and offer the right to sue non-compliant cities or counties to both individuals and corporations.
ALEC currently has five model bills on its website explicitly designed to preempt local measures, and last year, Jon Russell, the director of the American City County Exchange (ACCE), ALEC’s local government initiative, wrote a piece titled “Preemption Laws Provide Backstop for Localized Progressive Politics.” The National Restaurant Association has also thrown its support behind measures to ban local minimum-wage hikes and other attempts to increase labor standards.
“We realized it’s much more convenient for them to fight this in 50 state capitals than in 13,000 cities and localities,” says Kim Haddow, a consultant who works with groups that oppose these maximum preemption laws. Many groups that work against these laws push for policies that conservative state legislatures oppose. For instance, Family Values @ Work and the Rockefeller Family Fund both promote paid sick leave and workers’ rights. Others, like Grassroots Change, which monitors preemption measures through its Preemption Watch initiative, and the Center for Media and Democracy, which created the ALEC Exposed website to show that organization’s reach, focus on what preemption means for political participation and democracy. These groups often work together; anti-preemption workshops convened by the Mayors Innovation Project, a national networking initiative that connects local officials and promotes progressive policies, have featured all of them.
Preemption is a relatively cut-and-dry legal matter in most states. Localities are creations of the states and have whatever power states grant them. “For more than a century, it’s been understood that city power derives from state law,” says Harvard Law School professor Gerald Frug, co-author of City Bound: How States Stifle Urban Innovation. “A lot of the fights have to be done at the state [level].”
Some states grant cities more clout than others. States like Virginia follow the so-called “Dillon’s Rule,” a principle named after a 19th-century judge and law professor, John Forrest Dillon, who formulated the doctrine of state preeminence over local governments when he was on the Iowa Supreme Court. Municipalities, according to Dillon, “derive their powers and rights wholly from the [state] legislature. It breathes into them the breath of life. … As it creates, so may it destroy. If it may destroy, it may abridge and control.”
Other states allow “home rule,” granting cities more flexibility. But the distinction only matters when outside groups bring a lawsuit against a local ordinance. Whereas home-rule cities don’t have to ask permission before they pass certain types of laws, courts may find that a city in a Dillon’s Rule state never had the authority to pass a civil-rights ordinance or minimum-wage hike in the first place. But even in a home-rule state, if a state legislature takes back authority, be it over plastic bags or paid leave, there seldom is much the city can do. “The system is still based on the idea that the states are hierarchical superiors,” explains Richard Briffault, a professor at Columbia Law School and an expert on state and local government law. State constitutions usually protect city authority only over narrowly defined areas, such as hiring procedures for municipal workers.
This top-down structure has a rationale, says Aaron Renn, author of the city policy blog Urbanophile and a fellow at the Manhattan Institute. “States are expected to serve as a backstop to local government in a way that the federal government is not expected to serve as a backstop to the states,” he says. “When you give people control and then they get into trouble and you have to bail them out, that becomes a bit of a moral hazard.”
The explanation for the recent rise in maximum preemption isn’t hard to figure out. There hasn’t been any change in the country’s legal structure. Instead, with Congress gridlocked and with Republicans holding most state legislatures, local government has become the prime venue for progressive agendas. Many city officials oppose what their state is doing politically—on gay rights, on living wages, on immigration—and pass measures state lawmakers wouldn’t consider. The trouble is that cities have little power in relation to the state.
“Nowhere in the Constitution does it talk about the delegation of powers to cities and counties,” ACCE’s Russell said on a conference call. “Both the Dillon Rule and the home rule are creations of the state. Local powers can be given and local powers can be taken away.”
ARIZONA GOVERNOR DOUG DUCEY didn’t like what he was seeing—local pushes in Tucson and Tempe to consider paid sick leave ordinances, a group in Flagstaff hoping to get a minimum-wage increase on the ballot. So at this year’s State of the State address, he was explicit that cities adopting progressive policies would face repercussions. “I … encourage all our cities and towns to put the brakes on ill-advised plans to create a patchwork of different wage and employment laws,” he stated. “If these political subdivisions don’t stop, they’ll drive our economy off a cliff.” Ducey promised to use “every constitutional power of the Executive Branch” to prevent such a patchwork, including withholding shared revenue funds that usually pay for firehouses, police departments, and other public safety services.
Two months later, the state legislature sent the governor a bill with a creative, systematic, and especially punitive approach to preemption. Under this measure, which Ducey signed and which will go into effect in the fall, any state legislator can ask the state attorney general if a local ordinance is in conflict with state law, and if the attorney general determines the local measure is indeed in violation, the town or city will have just 30 days to reverse the measure or watch the state distribute its share of state funds to other towns. Another law passed in Arizona bars localities from mandating the fringe benefits that businesses offer employees, while a third bars communities from penalizing companies for changing employees’ work schedules. Still a fourth measure seeks to punish Tucson and other cities that have kept gun regulations on the books despite state laws preempting them. The measure allows courts to remove public officials from office and impose penalties up to $50,000.
Such laws limit the innovative, problem-solving potential of local governments. Many city councils don’t have partisan affiliations and even where they do, officials are often less beholden to party politics. City services are not siloed the way they are at the state level. Mayors can easily sit down with those in charge of housing, transportation, and waste management to discuss a problem that affects all three areas. Similarly, local government solutions often emerge out of conversations with nongovernmental entities: businesses, of course, but also local nonprofits, foundations, and activist groups on all sides.
“The partnerships can sometimes be challenging to the partisan nature of state government,” says Brooks Rainwater, director of the City Solutions and Applied Research Center at the National League of Cities. “At the city level, at the end of the day, mayors and city council members have to get stuff done. Potholes have to be fixed and the trash has to be collected.”
But with some metropolitan areas increasingly differentiating themselves from smaller towns and rural areas, conflicts between cities and state legislatures are increasing. As Harold Meyerson has written in this magazine (“The Revolt of the Cities,” May/June 2014), America’s urban populations have become younger, gayer, and less white than the rest of the country, and in the process have become more progressive compared with their states as a whole. Urban elected officials often embrace controversial policies they believe would improve the general functioning of their city—whether improving environmental standards or making the city friendlier to gay residents. “It’s one more reflection of the growing partisan polarization that we see,” explains Alan Abramowitz, a political science professor at Emory University. “There’s a growing divide between red states and the very blue, very progressive urban areas within those states.”
Cities are those states’ economic drivers; urban centers are responsible for a huge, and growing, proportion of economic growth. During the past 15 years, the share of economic output produced in metropolitan areas has risen from 85 percent to 91 percent, according to the 2015 U.S. Metro Economies Report from the United States Conference of Mayors and the Council on Metro Economies and the New American City. When conservative state governments override local policies that reflect the progressive culture and politics of cities—as North Carolina did in adopting its “bathroom” law—the state risks driving away the people who are fostering prosperity.
Bruce Katz, an expert on global urbanization at the Brookings Institution, points out, however, that it’s not only red states that cause problems for blue cities. Just because a blue state isn’t fighting its cities on plastic-bag bans doesn’t mean that its Democratic state legislature gives cities access to capital or the right to annex adjoining (and often wealthy) areas. In fact, Katz points out, plenty of western states do allow annexation. “I don’t think either party, once they get in power in a state, really deals with the city in the way that it needs to. I don’t think either party has a monopoly on really dealing with a city well,” he says. “Does [a city] have access to enough capital to solve its problems? Because at the end of the day it’s the problem solver. Not the state. Not the federal government. The true unit of the economy is the metropolis.”
Of course, maximum preemption laws do not simply affect major cities, and small towns are often more constrained than their more populous counterparts. But maximum preemption bills largely target the big cities that have values at odds with those of their state legislature. A 2015 survey of 89 mayors in 31 states conducted by Boston University’s Initiative on Cities showed mayors felt “overly burdened by restrictions from their state government” and wished they could expand revenue-raising options and free themselves of other limitations on their autonomy. According to the survey, most mayors feel they have a worse relationship with their state legislature than with the federal government.
As American politics continue to polarize, there’s little incentive for state legislatures to compromise with cities that rural and suburban voters distrust. Neither side is free from accusations of hypocrisy. Conservatives who frequently invoke state and local control as an argument against federal overreach now embrace maximum preemption laws that limit local authority. While state legislatures may have the legal authority to impose those limits, systematically taking power from cities and towns doesn’t look good for a party that’s spent eight years railing against Obama administration “power grabs.”
But progressives also champion preemption laws at the state level, albeit minimum preemption laws that build higher regulatory floors: stricter environmental measures, for instance, or higher minimum wages or stronger anti-discrimination measures. And their initiatives too can seem driven more by ideology and national aims than by practical, local results. “With things like the minimum wage, people are very explicit that they are doing this to promote national change,” says Renn. “A lot of these progressive policies are not about delivering traditional municipal services better. They’re about addressing national issues better.”
ACCE’s Russell agrees. “When you take a state like Oregon,” which has raised the minimum wage statewide, “you never hear people say local control,” says Russell. “A lot of this is driven by local interests at the local level who have lost the ability to get their way at the state level.”
For progressives, however, the distinction between maximum and minimum preemption measures is enormous. “You don’t want local communities to undo protections, but you do want them to be able to increase protections,” says Ellen Bravo, director of Family Values @ Work, an advocacy group for paid sick days and paid family leave.
Most progressive activists fighting preemption measures readily admit they’d like to see some of these local ordinances become state or federal law. But they’re also blunt about how unrealistic such hopes seem. “Increasingly, if you’re an advocate for workplace reform, the only place you can move is at the county or city level,” says consultant Haddow. With the federal government gridlocked and so many state legislatures controlled by hard-line Republicans, there’s less opportunity for minority-party measures even to be debated at a committee hearing, let alone passed. In the deep red states, city councils and county boards have become the last available forum for discussing paid leave, higher minimum wages, or environmental standards. When maximum preemption laws pass, it often ends the discussion; local activists have nowhere to turn.
“I still feel disempowered and dejected by HB 40,” the measure that undid Denton’s fracking ban, says Adam Briggle, the professor who fought to pass the ban. “I also feel turned off from civic action because of the way the fissures have opened up in our own community [after the law was passed].”
IN BIRMINGHAM, ALABAMA,nearly three-quarters of the residents are African American, and nearly a third of the people live in poverty. The city became an industrial center in the late 19th century because all the necessary ingredients for making steel—iron ore, coal, and limestone—were nearby. Like so many old industrial cities, Birmingham now relies more on finance and other services for its economic growth. But 40,000 of its own residents make just $7.25 an hour (the federal minimum wage), and many of these workers rely on food stamps and public housing to make ends meet. Unlike the vast majority of states, Alabama’s state legislature has never set a minimum wage above the federal level.
When fast-food workers in the city joined the Fight for 15 movement, a national effort advocating for a $15 minimum wage, the effort quickly gained momentum. In August 2015, after a lengthy series of debates and research, the council decided to increase the city’s minimum wage to $10.10 an hour by 2017. In doing so, Birmingham became the first city in the South to offer residents a minimum-wage hike. “It wasn’t the $15 an hour we need,” said Antwan Adams, a local Hardee’s employee, in a prepared statement, yet “I began to dream of a life where buying dinner or paying the electricity bill didn’t cause panic.”
But then, he said, “the state stole my raise.”
Before the ordinance could go into effect, the governor called a special session to roll back the measure. Representative David Faulkner, whose Mountain Spring district is among the state’s wealthiest, sponsored the measure; it passed within a week of being introduced. (Faulkner did not respond to multiple calls to his office requesting comments for this story.)
Now, labor advocates are suing the state, claiming that the preemption law shows racial animus and violates the Equal Protection Clause of the U.S. Constitution. Adams is among the plaintiffs, as is Greater Birmingham Ministries and the Alabama Chapter of the NAACP. The case is predicated on how quickly the majority-white legislature overrode a majority-black city council on a matter that would disproportionately impact African American workers, and on the character of the 1901 Alabama Constitution, which enshrines state preemption. That constitution also still allows for a literacy test to vote, outlaws intermarriage, and requires segregation in education. (Federal law and Supreme Court decisions have rendered most of these laws unenforceable.) The labor advocates’ suit agues that when state legislators rely on the preemption authority given by such an openly racist document, they are showing similarly discriminatory intent.
Penda Hair, co-founder of the Advancement Project, a civil-rights legal group, says this would be the first time she is aware of that racial-discrimination claims have been used against a preemption law. “It is not going to be like all preemption laws across the country are suddenly suspect because of this,” says Hair. “But it could cause other laws to be vulnerable.” (Hair is not directly involved in the Alabama litigation, though she has talked with the plaintiffs and spoke on a media call about the lawsuit.)
If the Birmingham case is successful, it may offer a new tactic for localities trying to fight preemption laws. Typically, such fights are extremely difficult, since cities cannot lay claim to any inherent rights of self-determination.
Publicity has often been the most effective method for combating preemption bills. In Georgia, a so-called “religious liberty” bill that passed the state legislature would have allowed faith-based groups to deny services to gay or transgender people. But national publicity made it clear that the cost of such a measure would have been huge, as major companies said they’d pull their operations out of the state. The NFL threatened to take Atlanta out of consideration for the Super Bowl; Disney promised to stop filming in the state. Ultimately, the governor vetoed the measure.
Because conservative politicians lay so much store in the importance of state and local control, advocates have also found some success emphasizing the hypocrisy of Republican legislatures passing such measures. Notably, in South Dakota, Governor Dennis Daugaard vetoed a measure that would have prevented local school districts from allowing transgender students to use the bathrooms and locker rooms that correspond with their gender identity rather than their biological sex. The bill, the governor declared, “removes the ability of local school districts to determine the most appropriate accommodations for their individual students and replaces that flexibility with a state mandate.”
But most liberal activists don’t want to just cross their fingers and hold their breath hoping for a governor’s veto. Consultant Haddow says the campaigns she works with usually level with communities seeking advice or help; national support organizations often won’t work on measures particularly likely to draw a preemption law. Family Values @ Work’s Bravo argues that the next step for communities is to try to put initiatives on the state ballot where that option is available. Taking back state governments from conservatives would clearly do the most to avoid the preemption problem.“We have got to vote these individuals out of office,” says Alabama’s NAACP President Bernard Simelton. “That’s the only way we’re going to effect a change for sure.”
For now, however, local activists must grapple with whether they should take a fight to town hall if that means bringing down the wrath of the state capitol. Hunter, the Denton music teacher who threw herself into the fracking-ban efforts, readily admits that watching fracking drills roll into her town after the state’s preemption measure was heartbreaking. Nevertheless, she appreciates how local actions can ripple throughout the country and change the conversation. She says she often heard from other activists across the country that if the people of North Texas—the homeland of fracking—could ban it, they could too. The question is how long such victories can last without winning elections statewide.
TWO HUNDRED MILES SOUTH of Denton, Austin was having its own fight with business. Not over oil and gas or living-wage issues but, ironically, with Uber, the “ridesharing” app company, currently valued at $50 billion. The company operates as a competitor to taxi services, allowing anyone to sign up as a driver, submit to a background check through a separate company, and then respond to ride requests. The company is so popular with consumers, it’s successfully pushed past the various concerns about the adequacy of these background checks, which have been raised by taxi companies (who fear being put out of business) and by city councils in a number of places. But in Austin, the issue blew up when the city council voted in December to require drivers for Uber (and fellow rideshare company Lyft) to submit to fingerprint-based background checks like those that taxi drivers must undergo.
Both companies had already promised to pull out of Austin if the city made additional background check requirements. After the city council passed the ordinance requiring fingerprinting, the companies launched a campaign to repeal it through a ballot proposition. They poured more than $8 million into the fight, breaking all records for spending in city elections. They employed thousands of block walkers to comb the city and sent out a seemingly limitless supply of flyers. Uber sent out text blasts to customers, pushing them to vote (an act that resulted in a federal lawsuit and a complaint to the Federal Communications Commission). The opposition had less than $200,000 with which to push back. For many, the battle had become about just how much power industry should have over city councils.
The May election results were clear: 56 percent of Austinites voted against the measure. The companies pulled out, disappointing users, but seemingly affirming that cities can indeed set limits on all-powerful companies.
Within 24 hours, however, two Republican state senators had promised to repeal the measure—and with it, yet another piece of local power.